Interstate Cooperation, Second Edition

CHAPTER ONE

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INTERSTATE COMITY

An imperium in imperio (an empire within an empire) is an aptdescriptor of a federal system as sovereign political powers are

divided between a national government and constituent state govern-ments.1 This power division automatically produces national-state rela-tions and interstate relations characterized by competition, cooperation,and/or conflict. This book focuses on interstate comity in the UnitedStates that in origin predates the emergence of the federal system and istraceable to the Declaration of Independence of 1776 that necessitatedinterstate cooperation, similar to an international alliance, for the suc-cessful prosecution of the War of Independence.

The literature on national-state relations in the United States is vastin contrast to the scarcity of interstate relations literature. The firstcomprehensive book on such relations was not published until 1996.2This fact is surprising since boundary and trade disputes between sisterstates were major factors contributing to calls for amendment of theArticles of Confederation and Perpetual Union, and ultimately led tothe convening of the Constitutional Convention of 1787 that draftedthe U.S. Constitution as a replacement of the articles.

Political scientists generally had relatively little interest in interstaterelations in the post-1940 period until the turn of the twenty-first cen-tury. The lack of interest is difficult to explain when one considers thewide variety of major economic, political, and social matters involvedand the importance of daily interstate cooperative activities. The declin-ing scholarly attention paid to such relations is apparent upon a perusal

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© 2012 State University of New York Press, Albany

of three special issues of The Annals of the Academy of Political andSocial Science devoted to federalism and intergovernmental relations.3The 1940 issue contained six articles on interstate relations. Thenumber of such articles declined to two in the 1974 issue, and to nonein the 1990 issue. Fortunately, there has been increasing scholarly atten-tion to such relations commencing in 1996.

The advantages of a federal system, according to its proponents, areavoidance of overcentralization of political power, national uniformityin policy areas where needed, states controlling their internal affairs andexperimenting with new policies that lead to adoption of successfulones by sister states and/or the national legislature, greater opportuni-ties for citizen participation in the policy making and implementationprocesses, and ability of states to remedy an internal problem withoutwaiting for the national legislature to develop a solution.

A federal system, however, may have four major disadvantages.First, the exercise of concurrent powers by the national legislature andstate legislatures may produce conflicts between the two levels of gov-ernment and/or uneconomical performance of overlapping functions.Second, disharmonious state policies in numerous important areas—such as banking, criminal justice, highway safety, and taxation—createmajor problems for business firms and citizens who have to ascertainconflicting provisions in the various laws of the fifty states and be alertto frequent changes in many laws. Third, the refusal of a state govern-ment to recognize the public acts, judicial proceedings such as divorce,and records of another state generates significant problems. Fourth,serious transboundary problems (air and water pollution are examples)may remain unabated in the absence of national legislative action orinterstate cooperation to solve them.

Formal interstate cooperation and informal interstate cooperationare the keystones holding the United States federal system together andcontributing to its success, yet they are a largely unexplored area of thefederal system. Cooperation is manifested in many forms. Formal coop-eration is reflected in interstate compacts, reciprocity statutes, uniformlaws, and written interstate administrative agreements for joint actionthat may be the product of self-interest of sister states and/or congres-sional promotion as explained in a subsequent section. Whereas com-pacts and uniform laws usually are intended to be relatively permanent,administrative agreements between sister states may be temporary orpermanent and may be verbal or written. Interstate compacts can belocated in the consolidated laws of states and, if consent has beengranted by Congress, in the United States Statutes at-Large. Unfortu-nately, there is no central repository in any state holding all written

2 INTERSTATE COOPERATION


interstate administrative agreements entered into by the state. A NewYork law requires the secretary of state to keep a current compilation ofall interstate compacts and administrative agreements, referred to asinterstate concordats, entered into by New York and its political subdi-visions, yet only three agreements are in the compilation (including onewith the Province of Quebec on acid rain).4

A notable feature of the contemporary U.S. federal system is theexceptionally large number of informal understandings between admin-istrative officers in various states pertaining to combating organizedcrime, hot pursuit by police across state boundary lines, mutual assis-tance in extinguishing forest fires, prevention of environmental pollu-tion, and other matters (see chapter 6). There has been a sharp increasein the number of these agreements during the past six decades with littleattendant public visibility and few formal studies.

National and regional associations of state administrative officersplay key roles in promoting interstate cooperation. Numerous associa-tions draft model laws and model administrative agreements, and asso-ciation members promote the models in their home states. Certainnational associations of state administrative officers encourage inter-state cooperation to solve problems in order to fend off congressionalpreemption of their regulatory powers.5 For example, the national asso-ciation of insurance commissioners initiated action to improve state sol-vency regulation of property-casualty and life-insurance companies byestablishing an accreditation program for states (see chapter 6).6

Interstate collaboration is common, but should not blind us tointerstate conflicts over water allocation and/or pollution, boundarylines, taxation, and other subjects. Furthermore, interstate economiccompetition is common as individual states rationally seeking to attractmajor federal government facilities, industrial firms, service industries,tourists, and in some instances gamblers. Tax abatements, grants, andloans commonly are offered as inducements to firms to locate in a par-ticular state. The U.S. Advisory Commission on IntergovernmentalRelations (ACIR) in 1991 identified “competition in the areas of educa-tion, public welfare, and public works infrastructure . . . and right-to-work laws and laws regulating workers’ compensation insurance.”7

States also compete to obtain certain federal grants-in-aid. Tax exporta-tion is another feature of a federal system with states rich in and export-ing natural resources—coal, forest products, natural gas—levyingrelatively high extractive taxes that are passed on by purchasers in sisterstates to consumers. New Hampshire is perhaps the outstanding exam-ple of a state engaging in another type of tax exportation. The state’slow alcoholic beverages and tobacco products excise taxes and lack of a

Interstate Comity 3


sales tax and a bottle deposit act as magnets for shoppers from theother New England states that all levy sales taxes and have higherexcise taxes and a bottle deposit act. It is apparent conflicts and compe-tition may hinder interstate cooperation.

Interstate compacts and interstate administrative agreements are thespecific foci of this book, and selected ones are assessed in terms of theirsuccess in chapter 7. A proper understanding of state interactions neces-sitates an acquaintance with the origin of the federal system, constitu-tional distribution of political powers between Congress and the states,congressional promotion of interstate cooperation, and interstate con-stitutional principles (see chapter 2).

ORIGIN OF THE FEDERAL SYSTEM

English institutions and philosophies of governance influenced greatlythe United States governmental system as the colonists brought to thenew world concepts of popular sovereignty, natural law, natural rights,rule of law, and separation of powers. They, of course, lived under acentralized unitary system with sovereignty residing in the mothercountry.

New Hampshire in 1775 revolted against British rule and the Dec-laration of Independence in 1776 formally instituted the RevolutionaryWar by the thirteen former colonies against the British Crown. The dec-laration’s immediate result was the establishment of thirteen independ-ent nations with eleven drafting constitutions and Connecticut andRhode Island converting their royal charters into constitutions.Although no national constitution or government existed, each statesent delegates to the second Continental Congress which directed thewar effort, borrowed funds, raised armies, and entered into treatieswith other nations. The Congress recognized the need for a nationalgovernment, but did not seriously consider a unitary system as thecolonists had revolted against such a system. Two nations—Switzerlandand the United Netherlands—operated under a confederate system thatappealed to the newly independent states.

Articles of Confederation and Perpetual Union

The Continental Congress in 1777 drafted the articles and submittedthem for ratification to the states with the proviso they would becomeeffective upon the ratification by all states. Maryland, the thirteenthstate, did not ratify the articles until 1781. Boundary disputes, attribut-



able to imprecision in royal-land grants, were responsible for the ratifi-cation delay and were overcome when the Continental Congress pro-posed in 1780 that the title to disputed lands should be transferred tothe proposed national Congress to be “disposed of for the commonbenefit of the United States and be settled and formed into distinctstates which shall become members of this Federal Union, . . .”8 NewYork, which had few territorial claims, and Virginia with numerousland claims in 1781 ceded their lands to the Congress, and their leadwas followed by the other states with such claims.

PROVIS IONS

Congress enacted the Northwest Ordinance in 1787 stipulating that sec-tions of the Northwest Territory would be admitted as states when thepopulation in each section reached 50,000.9 Article XI of the Articles ofConfederation and Perpetual Union provided “Canada, acceding to thisConfederation, and joining in the measures of the United States, shall beadmitted into and entitled to all the advantages of this Union, but noother colony shall be admitted into the same unless such admission beagreed to by the nine States.”

The confederation was “perpetual” in nature according to the arti-cles that did not employ the word government. Article III described thegovernance system as a “firm league of friendship,” thereby emphasiz-ing the importance of cooperative interstate relations, and declaring itspurposes to be “common defence, the security of their liberties, andtheir mutual and general welfare, binding themselves to assist eachother, against all force offered to, or attacks made upon them, or by anyof them, on account of religion, sovereignty, trade, or any other pre-tence whatever.”

The second article made clear the confederate nature of the newgovernance system: “Each State retains its sovereignty, freedom andindependence, and every power, jurisdiction and right, which is not bythis confederation expressly delegated to the united States in Congressassembled.” Note the lower case u in “united” denoting the establish-ment of a league of states by the articles rather than a national govern-ment with powers derived from the people.

The unicameral congress had two-to-seven delegates from eachstate appointed and recallable by their respective state legislatures for amaximum term of three years in any period of six years. Each state hadonly one vote in Congress which was authorized to appoint a commit-tee of the states, composed of one delegate from each state, to meetduring congressional recesses and to appoint a president as presidingofficer for a term not exceeding one year during a three-year period.The committee was empowered to borrow funds, declare war, build a

Interstate Comity 5


navy, raise an army, coin money, negotiate treaties, establish a postalsystem, fix standards of measures and weights, and regulate relationswith Indian tribes. The committee also was authorized to exerciseadditional powers delegated by Congress provided nine states agreed.There were, however, no separate executive branch and no separatejudicial branch.

DEFECTS

Experience quickly revealed the articles had five defects:First, the power of taxation was not granted to Congress, and it

was dependent upon individual states sending their contribution quotasof funds and many failed to send their quotas. In consequence, Con-gress was unable to exercise its delegated powers effectively.

Second, Congress lacked the power to enforce its laws and treatiesentered into with foreign nations, and states were under no legal obliga-tion to respect congressional laws and treaties. James Madison in 1787noted states violated the Peace Treaty of 1783, the Treaty with France,and the Treaty with Holland, and “as yet foreign powers have not beenrigorous in animadverting on us.”10

Third, the lack of power to regulate interstate commerce made itimpossible for Congress to counteract the mercantilist practices of statesthat had erected trade barriers against sister states, thereby bringinginterstate commerce to a near standstill. This defect clearly was themost serious one and contributed greatly to the increasing public pres-sure for the amendment of the articles.

Fourth, Congress possessed the authority to raise and support anarmy and a navy, but lacked the resources to do so during a periodwhen England controlled Canada, Spain occupied lands to the south-west, and the French monarchy, which had supported the states duringthe revolutionary war, was in danger of collapse. More importantly,Congress was unable to assist states in suppressing domestic disorderssuch as Shay’s rebellion in western Massachusetts.

Fifth, dissolution of the confederacy was a distinct possibility.Madison commented in 1787 “a breach of any of the Articles of Con-federation by any of the parties to it absolves the other parties fromtheir respective obligations, and gives them a right if they choose toexert it of dissolving the Union altogether.”11

Constitutional Convention

The articles’ defects became more apparent with the passage of time.Maryland and Virginia recognized fully the importance of cooperative



interstate relations, and their representatives in 1785 drafted thePotomac River and Chesapeake Bay Navigation and Trade Agreement.The Maryland General Assembly ratified the compact and proposedDelaware and Pennsylvania be included in negotiations of interstatecommercial regulations. The Virginia General Assembly also ratified theagreement and invited all thirteen states to attend a convention inAnnapolis, Maryland in 1786 to develop a uniform system of commerceand trade.

Nine states appointed commissioners to attend the convention, butonly twelve commissioners from five states participated. The conventionapproved a resolution requesting Congress to convene a convention inPhiladelphia in May 1787 to examine the Articles of Confederation andPerpetual Union and to propose needed amendments. Congress, with-out enthusiasm, approved on February 21, 1787 a resolution calling aconvention, but failed to designate the method of selecting delegates.They were appointed by each state legislature or by the governor underlegislative authorization.

Only the State of Rhode Island and the Providence Plantationsfailed to send delegates to the convention that met from May 25 to Sep-tember 17, 1787. Rhode Island maintained the articles could beamended only in conformance with Article XIII , requiring the approvalof Congress and confirmation “by the legislatures of every state.”Although seventy-four delegates were appointed, nineteen delegates didnot accept their appointments or did not attend the convention. Four-teen remaining delegates left the convention prior to the completion ofthe draft constitution.

Governor Edmund Randolph of Virginia sparked conventiondebate on May 29, 1787, when he introduced fifteen resolutions toserve as the basis of a national government similar to the British govern-ment. Debate centered on the question of whether the articles should beamended or replaced. By a vote of six to one, delegates decided toreplace them and restructure the governance system in general andinterstate relations in particular.

The convention proceedings produced major compromises betweenlarge and small states, and northern and southern states. The Connecti-cut Compromise provided for a senate with two members from eachstate and a house of representatives based upon population with a stip-ulation each state is guaranteed a minimum of one representative. Thetwo alternatives were representation in a single house by the popula-tion of each state, or each state having a single vote in a single house.Two of the most famous compromises between northern and southernstates involved slavery and imposition of import and export duties.The draft constitution allowed slaves to be imported for twenty years

Interstate Comity 7


and authorized Congress to impose a tax of not exceeding ten dollarson each slave imported. Southern states opposed import and exportduties. The compromise was a constitutional provision authorizingCongress to levy import duties.

The product of the convention was a new governance system incor-porating elements of a confederate system and a unitary system bydividing powers between a national Congress and states, and establish-ing an executive branch and a judicial branch of government. Fearingtheir work might be frustrated by a small number of states that wouldnot ratify the proposed constitution, the delegates incorporated a provi-sion in the constitution stipulating it would become effective upon rati-fication by nine states. This provision conformed with the spirit ofArticle X of the Articles of Confederation and Perpetual Union, author-izing nine states in Congress assembled to delegate its powers to thecommittee of the states to execute during congressional recesses. Mostdelegates also were convinced that the ratification of the fundamentaldocument by nine states would pressure the remaining four states toratify the document.

Ratification Campaign

The proposed U.S. Constitution was a controversial fundamental lawwith the strongest objection centering on the lack of a bill of rights,although three civil liberty guarantees—prohibition of enactment of abill of attainder and a ex post facto law, and suspension of the writ ofhabeas corpus except during an invasion of rebellion—were included inSection 9 of Article I. Many constitutional provisions not surprisinglywere subjects of debate in various states. Critics also faulted the docu-ment for its failure to acknowledge God and to require public offices beheld by Christians. Fear also was expressed the president as commander-in-chief of the armed forces might become another Oliver Cromwell.

Popular conventions in Delaware, New Jersey, and Pennsylvaniaquickly ratified the proposed constitution. Connecticut and Georgia rat-ified the document shortly thereafter, but major objections were raisedin Massachusetts, New York, and Virginia.

Alexander Hamilton, John Jay, and James Madison, three promi-nent federalism supporters, wrote eighty-five letters to editors of NewYork City newspapers, between late March and May 28, 1788, to per-suade the New York convention to ratify the proposed constitution.These letters, published collectively under the title The Federalist



Papers, are the most informative expositions on the constitution asdrafted.12 Each letter focused on a constitutional provision, explainedits purpose, and defended its inclusion. The New York convention, by amargin of three votes, ratified the proposed constitution.

The proposed constitution was ratified by the required nine statesby the summer of 1788, and New York and Virginia ratified the docu-ment shortly thereafter. North Carolina and Rhode Island ratified theconstitution in the autumn of 1789 and spring of 1790, respectively.Contributing to the successful ratification campaign was a promise bythe constitution’s proponents the first order of business of the new Con-gress would be the proposal of a series of amendments to the U.S. Con-stitution, which became known as the Bill of Rights.

CONSTITUTIONAL POWER DISTRIBUTION

The U.S. Constitution established the world’s first federal system by del-egating certain political powers to Congress and reserving all otherpowers not prohibited to the states and the people. Delegated powersinclude borrowing and coining money; constructing post roads; estab-lishing post offices, and copyright and patent systems; levying taxes;raising and supporting a army and a navy; regulating commerce withforeign nations, Indian tribes, and among states; and other powers. Sev-eral powers, including coinage, are exclusive congressional ones asstates are forbidden to exercise them, but it should be noted Congresscan not be forced to exercise any delegated power. The scope of the del-egated powers is subject to judicial interpretation. It is particularly note-worthy that Congress is limited to providing only one service, the postalservice, directly to citizens within states (with the exception of land,such as a military base, owned by the national government). Congress,however, offers conditional grants-in-aid to influence the provision ofservices by state and local governments.

Implementation of the federal system immediately generated a debatebetween individuals favoring a loose construction of the delegated powersand individuals favoring a strict construction to protect state rights. Theconstitution contains in Section 8 of Article I the “elastic” or “coefficient”clause: “To make all laws which shall be necessary and proper for carry-ing into execution the foregoing powers, and all other powers vested bythis Constitution in the Government of the United States, or in anydepartment of officer thereof.” This clause underlies the judicial doctrineof implied powers, the broad interpretation of which has augmented

Interstate Comity 9


significantly the powers of Congress. The doctrine was developed inMcCulloch v. Maryland in which the U.S. Supreme Court in 1819 pro-nounced: “Let the end be legitimate, let it be within the scope of the con-stitution, and all means which are appropriate which are plainly adaptedto the end, which are not prohibited, but consistent with the letter andspirit of the Constitution, are constitutional.”13

Additional powers are delegated to Congress by eight constitutionalamendments. The Thirteenth Amendment grants power to Congress toenforce the prohibition of slavery and involuntary servitude with theexception of persons convicted of crime. Congress is authorized by theFourteenth Amendment to enforce its guarantees of due process of law,equal protection of the law, and privileges and immunities of citizens ofthe United States against infringement by states.

The Fifteenth Amendment forbids state denial or abridgment of theright of citizens to vote in elections “on account of race, color, or previ-ous condition of servitude” and authorizes Congress to enforce theamendment. The Sixteenth Amendment allows Congress to levy a grad-uated income tax. Congress previously was limited to levying only aproportional or flat rate income tax on corporations and individuals.The Nineteenth Amendment grants Congress power to enforce the rightof citizens to vote regardless of their sex.

Congress is authorized by the Twenty-Third Amendment to enforce itsprovision granting the District of Columbia “[a] number of electors ofPresident and Vice President equal to the whole number of Senators andRepresentatives in Congress to which the District would be entitled if itwere a State, . . .” The Twenty-Fourth Amendment bans the use of a polltax as a voting condition and authorizes Congress to enforce the prohibi-tion. And the Twenty-Sixth Amendment lowered the voting age in all elec-tions to eighteen and grants Congress the power to enforce theamendment. The Eighteenth Amendment granted Congress and states con-current powers to enforce the prohibition of the sale of intoxicatingliquors, but the amendment was repealed by the Twenty-First Amendment.

Experience reveals the Fourteenth Amendment and the FifteenthAmendment significantly increased the power of Congress to protect therights of citizens, especially Blacks, against infringement by state andlocal governments. The Sixteenth Amendment, by permitting the federalgovernment to raise large sums of money, enables Congress to employconditional grants-in-aid and crossover sanctions—conditions attachedto one-grant program made applicable to other programs, (see below)to influence greatly the provision of services by and regulatory policiesof states.



The reserved or residual powers of states are not enumerated in theU.S. Constitution, yet are of great importance and include powersinherent in sovereign governments to borrow funds, provide services,regulate persons and property, and tax. Of particular importance is theexceptionally broad and exclusive English common-law police powerexercisable by state legislatures to promote public health, safety, wel-fare, morals, and convenience. Each state legislature initially possessedcomplete power over local governments, but current home rule consti-tutional provisions in many states grant general purpose local govern-ments significant discretionary authority.14

The enumerated powers of Congress do not preclude state legisla-tures from exercising the identical powers unless such an exercise is pro-hibited by the U.S. Constitution or Congress has employed its power ofpreemption, based on a delegated power and the supremacy of lawsclause of Article VI, to remove totally or partially a concurrent regula-tory power from a state.15 Interstate cooperation, as noted, has beenpromoted in attempts to discourage Congress from employing its powerof preemption. Such attempts have not always been successful and evenan established interstate compact can be subject to congressional pre-emption. The Vehicle Equipment Safety Interstate Compact, enteredinto by forty-one states, in effect was abolished by Congress upon itsenactment of the National Traffic and Motor Vehicle Safety Act of 1966completely preempting responsibility for the regulation of motor vehiclesafety with one minor exception.16

Articles I, III, and IV of the U.S. Constitution established the legalframework governing relations between sister states—interstate com-merce, interstate suits, interstate compacts, full faith and credit, privi-leges and immunities, and rendition of fugitives from justice. Theseinterstate constitutional principles and the U.S. Supreme Court’s deci-sion declaring the legal equality of states are examined in chapter 2. Theprinciples relating to compacts, full faith and credit, rendition, and priv-ileges and immunities in general were borrowed from the Articles ofConfederation and Perpetual Union.

STATE ENACTMENT OF UNIFORM LAWS

Section 10 of Article I of the U.S. Constitution authorizes a type of uni-form state laws in the form of interstate compacts (see chapters 3–5)within the territorial limits of each compact that may include only partsof two states or all states. The early compacts, with one exception,simply established state boundary lines and did not establish a generaluniform law.

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Uniform state laws are the product of interstate cooperation. Indus-trialization and the growth of interstate commerce and travel subse-quent to the Civil War revealed the major and minor problems createdby nonuniform state laws and generated fears by a number of state-elected officers Congress might exercise its powers of preemption morefrequently to remove regulatory powers from the states as it did byenacting the Interstate Commerce Act of 1887 and the Sherman Anti-Trust Act of 1890. A number of organizations decided to promote theenactment of uniform laws by state legislatures to facilitate interstatecommerce and travel, and discourage congressional preemption. TheAmerican Bar Association in 1889 approved a resolution dedicating theassociation to work for the enactment of uniform state laws. Thenational conference of commissioners on uniform state laws was organ-ized in 1892 when its first conference, attended by representatives ofseven states, was held. The commissioners drafted several uniform lawsto solve specific nonuniformity problems such as acknowledgements onwritten instruments and recognition as valid wills probated in sisterstates. Noting the lack of uniformity in the legal weights of a bushel, thecommissioners also prepared a table of weights and measures.

By 1912, all states appointed commissioners, and the District ofColumbia, Puerto Rico, and the U.S. Virgin Islands subsequentlyappointed commissioners. The governor typically is authorized toappoint commissioners. The New York governor, for example, isempowered by statute to appoint five commissioners who “hold officeand may be removed at the pleasure of the governor.”17 The approxi-mately three hundred commissioners—attorneys, judges, nonpartisanjudges—serve without compensation other than expenses. They draftuniform laws on a wide variety of subjects—fiduciaries (1922), parent-age (1973), interstate family support (1992), anatomical gift (2006)—and promote their enactment by their respective state legislatures. Inaddition, the conference drafts model acts providing guidance to statelegislatures where uniformity on a subject is desirable but not essential.Its Model Administrative Procedure Act, for example, has been enactedinto law in an amended form by most state legislatures.

In common with interstate compacts, negotiations to reach anagreement by commissioners on a uniform law can be lengthy. Further-more, persuading all or most state legislatures to enact a uniform lawmay involve years. The Uniform Commercial Code, drafted in 1951,was enacted by forty-nine state legislatures by 1965, but the LouisianaState Legislature did not enact it until 1991.

A single state can initiate actions to promote the drafting and enact-ment of uniform laws. The 1890 New York State Legislature, for exam-



ple, authorized the governor to appoint three commissioners to examinestatutes pertaining to marriage and divorce, notarial certificates, insol-vency, and other problems, and to recommend methods to encourage allstate legislatures to enact uniform laws.18

CONGRESSIONAL PROMOTION OF UNIFORM LAWS

The diversity in state laws on various subjects, as noted, creates prob-lems for business firms and citizens. This diversity often encouragesindividuals to travel to other states to initiate legal actions. Individualsand couples seeking a quick divorce, for example, often journey toNevada in order to circumvent the divorce laws of their respective homestate. A second example involves a California husband and wife whoemployed in 2000 a facilitator to obtain twin babies born in Missouri.The birth mother told the couple a few weeks later she wanted to spendtime with the children and bid them goodbye. The mother, however,gave the babies to a British couple who traveled to Arkansas and used arelative’s address to allow them to secure a court order to adopt thebabies.19 California law provides that final adoptions will not beapproved unless the adoptive parents are residents of the state. Subse-quently, the British government returned the babies to the birth mother,and an Arkansas court invalidated the adoption order.

Congress recognized the diversity of the state-laws problem and ini-tiated several actions to encourage states to enter into interstate com-pacts and enact uniform state laws. The classic formal mode ofsister-state cooperation is enshrined in Section 10 of Article I of the U.S.Constitution, authorizing states to enter into compacts with each otherprovided Congress grants its consent. To encourage states to negotiateand to enter into particular compacts, Congress in 1911 initiated thepractice of granting consent to specified compacts prior to their drafting(see chapter 3).20 Compacts, except boundary and study commissioncompacts, establish a uniform law within their respective jurisdictionsand, in effect, create a limited type of federation within the largerUnited States federation.

Congress first attached conditions to grants-in-aid to states in theHatch Act of 1887, authorizing grants for the establishment of agricul-ture experiment stations at state colleges of agriculture.21 Congress sim-ilarly employed a crossover sanction to persuade state legislatures toenact a uniform law. In 1974, for example, Congress used such a sanc-tion to encourage state legislatures to lower the maximum highwayspeed limit to fifty-five miles per hour to conserve gasoline and diesel



fuel by stipulating a state without such a speed limit would lose 10 per-cent of its federal highway grants.22 The following year, Congressenacted a second crossover sanction to promote motor fuel conserva-tion by penalizing states with the loss of federal highway funds if theydid not enact a statute allowing motorists stopped at a traffic light tomake a right turn on a red signal if no vehicle is approaching the inter-section from the left.23

Congress in 1984 enacted a third statute threatening states with theloss of highway funds for failure to enact a statute raising the minimumalcoholic beverages purchase age to twenty-one.24 The U.S. SupremeCourt in 1987 upheld the constitutionality of the act and all statesenacted compliance statutes.25 In 1998, Congress employed anothercrossover sanction to encourage states to enact statutes relative tosecond and subsequent convictions of persons for driving while intoxi-cated or driving under the influence of alcohol.26 To avoid the loss of 10percent of its federal highway grants, each state legislature was requiredto enact by October 1, 2000, a statute requiring:

• a minimum one-year driver’s license suspension for repeatintoxicated drivers

• impoundment or immobilization of all motor vehicles ofrepeat intoxicated drivers or installation of ignition interlocksystems on such vehicles for a period of time during licensesuspension

• assessment of repeat intoxicated drivers’ degree of alcoholabuse and, when appropriate, referral to treatment

• a mandatory minimum sentence for repeat intoxicated driversof five-days imprisonment or thirty days of community serv-ice for the second offense, ten days of imprisonment or sixtydays of community service for the third and subsequentoffense.

Growing public concern about the drunk-driving problem impelledCongress in 1998 to employ a fifth crossover sanction threatening stateswith loss of 2 percent of their federal highway grants-in-aid if they failto lower the blood alcohol content (BAC) standard for determiningdrunk driving to 0.08 percent by 2004.27 The penalty was increased to8 percent in 2007, with states enacting the standards by that datereceiving any grant funds withheld from other states for their failure tocomply with the statute. States also have been encouraged by Congressto cooperate with each other and/or enact nationally uniform lawsand/or policies by other means. In 1982, Congress decided to facilitate



interstate cooperation by establishing the National Driver Register(NDR).28 All states and the District of Columbia voluntarily send toNDR information relative to drivers convicted of major traffic offensesor whose applications for licenses has been denied or whose licenses tooperate a motor vehicle have been revoked. States are required by theCommercial Motor Vehicle Safety Act of 1986 to check the registerprior to issuing a commercial driver operator license.29

A state motor vehicle department electronically can check withNDR prior to issuing an operator’s license to determine whether theapplicant has been convicted of motor vehicle offenses in sister states. IfNDR has a file on the applicant, its problem driver pointer system iden-tifies the sister state(s) holding the driver’s substantive data and auto-matically transfers the data electronically to the inquiring state. Prior torenewing a license or addressing a in-state conviction of a motorist for atraffic violation, a state motor vehicle department also can contactNDR for information on whether the concerned motorist has been con-victed of motor vehicle violations in sister states. NDR processes morethan forty million file checks annually with approximately five millionprobable identifications. In 1993, the National Highway Traffic SafetyAdministration recommended that Congress transfer NDR to the Amer-ican Association of Motor Vehicle Administrators. Congress in 1998amended the enabling statute by authorizing the U.S. secretary of trans-portation “to enter into an agreement with an organization that repre-sents the interests of the States to manage, administer, and operate theNational Driver Register’s computer timeshare and user assistance func-tion.”30 In consequence, NDR was transferred to the association.

A 1990 congressional statute promotes establishment of a nation-ally uniform policy by directing each state legislature to enact a lawmandating the revocation of the license of a driver of a motor vehicleconvicted of a drug-related crime.31 A section of the act respects statesovereignty by permitting a state legislature to “opt out” of the require-ment by enacting a resolution provided the governor posts a letter ofconcurrence to the U.S. secretary of transportation. This section necessi-tates initiation of action by a state legislature if it wishes to exclude thestate from the requirement. Congress apparently assumed few state leg-islators would support an exclusion resolution.

Congress responded to the boating-while-intoxicated problem inthe Coast Guard Authorization Act of 1984 by directing the U.S. secre-tary of transportation to develop standards to be employed in determin-ing whether a marine recreational vessel operator is intoxicated.32 Thecoast guard, acting under authority of the act, promulgated a rule in1987 stipulating a state blood-alcohol-content (BAC) standard is the



national standard within that state.33 The national standard (.10 BAC)is applicable only in states lacking a state standard and thereby encour-ages affected state legislatures to enact one. Fifty-four of fifty-six statesand territories by January 2001 had enacted BAC standards. Thirty-four had a .10 standard, nineteen had a .08 standard, and South Car-olina used a .08 standard when a person has been injured. Inconsequence, the Coast Guard BAC standard applied only in NewMexico, the Northern Mariana Islands, and in South Carolina whenthere has been no injury and a state standard is not in effect.34 Thecoast guard changed the national standard to .08 effective on March15, 2001.35

The Hotel and Motel Fire Safety Act of 1990 also encourages statelegislatures to enact uniform fire-safety standards by stipulating travel-ing federal government employees may stay only in hotels and motels inconformance with national fire-safety standards.36 Furthermore, the actrestricts the use of federal grant-in-aid funds to pay for a conference,convention, meeting, or training seminar at hotel or motels conformingto the standards.

The Clean Air Act Amendments of 1990 encouraged interstatecooperation by establishing the ozone transport commission composedof representatives of twelve northeastern states and the District ofColumbia sharing a common smog problem.37 In 1994, the commissionrecommended that the U.S. environmental protection agency (EPA)should require the member states and the District of Columbia to adoptthe California low-emission-vehicles program, and EPA implementedthe recommendation.38 The commission also initiated action to reducenitrogen oxide emissions from large fossil-fuel burning facilities bymeans of a “cap-and-trade” program under which firms reducing emis-sions acquire emission credits which may be traded.

AN OVERVIEW

Interstate cooperation has changed dramatically in its nature andimportance since the U.S. Constitution became effective in 1789 whenthe economy was primarily agricultural and interactions between sisterstates were limited. The frequency of interstate interactions increasedgreatly after the Civil War with rampant industrialization, new commu-nications and transportation systems, rapid population growth, andurbanization. Intergovernmental and interstate governance principleswere incorporated in the U.S. Constitution to facilitate harmoniousnational-state and interstate relations, and generally have proven to be



flexible ones allowing the national and state governments to developnew institutions and procedures to solve state, multistate, and nationalproblems.

Chapter 2 examines the six provisions in the U.S. Constitutiondesigned to encourage cooperative interstate relations by ensuring thelegal equality of each state; settling interstate suits; allowing states toenter into interstate compacts; creating a national legal system recogniz-ing the statutes, judicial proceedings, and records of every state; pro-moting interstate citizenship; ensuring the rendition of fugitives fromjustice; and establishing internal free trade.

The subject of chapter 3 is interstate compacts that may include asmembers two to fifty states, the District of Columbia, Puerto Rico, U.S.territories, and Canadian provinces. A compact or concordat also canbe limited to one town in each of two states. Such concordats, adminis-tered by a specially created commission or by departments and agenciesof compacting states, did not achieve prominence until second decade ofthe twentieth century.

Chapter 4 examines the governing bodies created by compactswhose members typically are appointed by the governor of each com-pacting state subject to state senate or council approval, and also mayinclude ex officio members who serve by virtue of holding specifiedstate offices and representatives of the United States government.

Administration of thirty-three compacts by state departments andagencies is the subject of chapter 5. Compact administrators typicallyare professionals who are members of the same national and regionalprofessional associations and often personally know their counterpartsin sister states. Such personal relationships tend to promote interstatecooperation.

Interstate administrative agreements, the subject of chapter 6, are ofgreat importance and involve all functional areas. Nevertheless, rela-tively little literature exists on such agreements. These agreements maybe written or verbal and also may be permanent or ad hoc in nature.There is no central repository for such agreements in any state.

Chapter 7 draws conclusions relative to the effectiveness of variousforms of interstate cooperation in solving transboundary problems. Thechapter also contains recommendations to promote more harmoniousinterstate relations and anticipates the future of sister-state cooperation.



Documents

Interstate Cooperation, Second Edition